A WhatsApp conversation has cost one of Kenya’s best-known filmmakers more than Sh1 million after the High Court ruled that the messages amounted to a legally binding contract.
Director David Tosh Gitonga must now compensate German filmmaker Christian Kramer after losing an appeal against a Small Claims Court judgment arising from WhatsApp exchanges that helped him secure Netflix funding for the television series “Volume”, which landed three nominations at the Zanzibar International Film Festival in 2024.
Filmmaker Tosh Gitonga.
Photo credit: Pool
In October 2024, Gitonga narrowly avoided the attachment of assets from his Primary Pictures offices in Nairobi after Interfield Auctioneers moved to enforce a Small Claims Court judgment ordering him to pay Kramer Sh678,403. By then, the debt had risen to Sh778,084 following his failure to honour the June 2024 judgment, prompting the auctioneers to proclaim assets worth Sh985,884.
Gitonga appealed the decision before the High Court in November 2024, arguing that the magistrate erred in finding that a contract existed between him and Kramer.
He maintained there was no formal agreement, written correspondence or credible evidence of an offer and acceptance, insisting Kramer had merely submitted sample work as part of an interview-like evaluation rather than under a commercial arrangement.
David Tosh Gitonga
Photo credit: Bonface Bogita | Nation Media Group
Gitonga further argued that the trial court relied almost entirely on Kramer’s evidence while disregarding his own testimony, resulting in what he termed a miscarriage of justice. He asked the High Court to overturn the judgment and dismiss Kramer’s claim with costs.
Kramer opposed the appeal, maintaining that the parties had entered into a valid electronic contract through phone calls, WhatsApp messages and their subsequent conduct.
He told the court that after editing and delivering the trailer for “Volume”, Gitonga used the work to secure Netflix funding before assigning the main editing work to other editors without paying him the agreed market rate.
Kramer argued that contracts can be concluded electronically without formal written agreements and that the WhatsApp exchanges, coupled with his delivery of the completed trailer and Gitonga’s acceptance of the work, fulfilled all the elements of a binding contract.
Gitonga rose to prominence in 2012 with Nairobi Half Life, the first Kenyan film selected as the country’s submission to the Academy Awards. He has since directed and produced acclaimed films including The First Grader and The Wedding Planner, while Volume received three nominations at the 2024 Zanzibar International Film Festival.
After reviewing the appeal, the High Court found that the trial magistrate had correctly applied the law governing implied contracts and that Gitonga had failed to demonstrate any legal error in the judgment.
The court held that the parties’ conduct satisfied the legal requirements of offer, acceptance and consideration, despite the absence of a formal written agreement.
“A contract can exist where no words have been used, but where it can be inferred from the conduct of the parties that a contract has been concluded. Not all contracts must be in writing. There is no general rule of law that all agreements must be in writing. The numerous advantages of a written agreement notwithstanding, all that the law requires is that certain specific agreements must be in writing or witnessed by some written note or memorandum. The trial court found as a factual certainty that the Appellant (Gitonga) initiated a negotiation, the Respondent (Karmer) submitted the edited trailer, and the Appellant approved the final version. Analytically, this sequence unequivocally fulfils the legal thresholds of offer, acceptance, and consideration. Therefore, this court finds that the trial court exercised its discretion upon the correct legal principles. Inferring the existence of a contract from the undisputed WhatsApp exchanges and the delivery of the completed trailer was a sound and legally permissible application of contract law to the facts before her,” the judge ruled.
Finding no error in the magistrate’s reasoning, the High Court dismissed the appeal in its entirety. The court also noted that its decision is final, leaving Gitonga with no further avenue of appeal.
